Canadian Underwriter

Ontario’s new rule allowing joint expert reports could lead to more settlements: insurance defence counsel

July 29, 2010   by Canadian Underwriter

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Ontario’s amended Rules of Civil Procedure have given trial judges the power to order experts for both sides to prepare a joint report, which may lead to more claims settlements and fewer trials.
Bill Chalmers of Hughes Amys made the observation at an Ontario Insurance Adjusters Association (OIAA) seminar in Toronto on July 29.
Chalmers said it remains unclear how judges would interpret the new rule, which allows judges to order experts for both the plaintiffs and the defence to meet and prepare a joint statement or report for the court.
“If the judges use that (power) extensively, many, many trials would be eliminated due to the uncertainty of what these two experts might come up with,” Chalmers said.
He said the case law around this kind of order is not yet fully formed, and the practice raises many questions. For example, it isn’t known yet which side would foot the bill for the joint report, nor is it clear whether counsel would be allowed to attend such a court-ordered meeting of experts.
“If the judge orders experts to meet and prepare a joint report, this could very well end the case,” Chalmers said. “It’s hard to imagine a situation in which the experts meet, agree, prepare a joint statement and that statement is provided to the trial judge, and the trial judge makes any decision other than in accordance with the joint statement.”